Medlin v. Western Union Telegraph Co.

Walker, J., after stating the facts as above: The evidence in this record shows a flagrant case of negligence, not only in one respect, but in several. The defendant, for a consideration, undertook to transmit and deliver this message to the sendee at Eosemary Mills, and it did neither *504 with that degree of care, nor with a proper regard for her rights, which the law and its express agreement exacted of it. There was negligence in the transmission of the message, as it was sent to "Weldon, N. 0., when both its duty and its custom required that it should have been sent to its office at Roanoke Junction, which is but a quarter or half of a mile from Rosemary Mills, and where it had both communication with the latter place by telephone and delivery messenger. That was manifestly the proper office at that end of the line to which the message should have been sent. But having selected the wrong office rather increased the measure of its duty to make a prompt and safe delivery. But just here it again failed in the exercise of ordinary care; for after making slight inquiry over the ’phone line at Rosemary, which was altogether too inadequate, defendant’s operator at Weldon called up Patterson Mills, for no good reason, so far as appears, and was told that they knew “a Medlin” and “gave them a copy; think they said it was T. W. Med-lin.” This copy was delivered to A. C. Medlin, who, “not being the sendee or akin to her,” returned it to the lady operator at Patterson Mills, after making further inquiry and search for Beckie Medlin, and told her that there was no one of that name there, and that she would probably find here at Rosemary Mills; there being some Medlins who lived there. This seemed to satisfy the operator at Weldon, simply because he had been told by some one that he or she thought it had been delivered at Patterson Mills,'and notwithstanding the message from A. C. Medlin that, it had not been and could not be delivered there. The effort to deliver the message was then relaxed. It was not sent to Roanoke Junction to be delivered by a messenger, if the telephone calls proved to be unavailing, and who, no doubt, by diligent search could have found Mrs. Medlin at Rosemary Mills, as there was only one woman by that name on the pay rolls, nor was any further and proper effort made to find her at the place to which the message was addressed, although, as she testified, she had received telegrams there from the Junction. They merely asked T. W. Medlin, superintendent of the mills, over the ’phone, if he knew her, and he replied that he did not, but afterwards testified that there was but one Mrs. Medlin in the mills. She had lived at Rosemary with her husband for fourteen years, and he was well known; there being only three Med-lins there — C. W. Medlin and his wife, Anna Rebecca (the plaintiff), and J. D. Medlin. But if the defendant was in doubt or unable to deliver the message, its plain duty, as often decided by the Court, was to wire back to Charlotte for a better address, and it would have been forthcoming, as the sender had left both his ’phone and street address, for the very purpose, with the operator there. S. C. McCall, who had delivered the message at Charlotte to the defendant for transmission, knew the sendee well, and, of course, her sister, Mrs. Jonas, could have given a *505 fuller and more accurate address if one was required. It was clear negligence not to have sought this information by a service message to Charlotte. Hendricks v. Telegraph Co., 126 N. C., 311; 35 S. E., 543; 78 Am. St. Rep., 658; Hoaglin v. Telegraph Co., 161 N. C., 395; 77 S. E., 417; Ellison v. Telegraph Co., 163 N. C., 5; 79 S. E., 277, and cases cited at page 13. But to the several acts of negligence already mentioned — namely, the failure to make adequate inquiry and search at Bosemary Mills, the incorrect delivery at Patterson Mills, to which the message was not addressed, the failure, in the beginning, to send it to Koanoke Junction, the proper station, under all circumstances, and the failure to wire back to Charlotte for a better address — there was super-added the crowning act of negligence in failing to accept the offer of C. 0. Byrd to bring the sendee to the ’phone at Bosemary Mills, after he had told the operator at Weldon, in answer to his service message of inquiry, that he knew Beckie Medlin and would perform the service. In reply to this offer the operator said, “Wait a minute,” and five or ten minutes thereafter, he was called over the ’phone and told that the message had been delivered at Patterson Mills. This was not only gross negligence, but it is passing strange that such an answer was given after T. W. Medlin had informed the Weldon operator that Beckie Medlin did not live at Patterson Mills and could not be found there. As Beckie Medlin did not arrive at Charlotte on the first train, inquiry was made at the office of the defendant at that place as to whether the telegram was delivered, and the inquirer was told that “if it had not been delivered, it would have been sent back.” Well, it was not delivered, and why was it not sent back, if this is the rule of the company, so that the plaintiff could have been notified promptly of its nondelivery and taken steps to insure a better service? The defendant should have made diligent inquiry and search for the sendee at the Bosemary Mills and elsewhere in Bosemary village, if she was not found at the mills. Hendricks v. Telegraph Co., 126 N. C., 312; 35 S. E., 543; Am. St. Rep., 658; Kivett v. Telegraph Co., 156 N. C., 296; 72 S. E., 388; Cogdell v. Telegraph Co., 135 N. C., 431; 47 S. E., 490; Hinson v. Telegraph Co., 132 N. C., 467; 43 S. E., 945. But it is sufficient to sustain the verdict that the defendant failed to avail itself of the offer of 0. O. Byrd, for under the charge of the court the jury have evidently found that the offer was made and not accepted. In whatever light the ease is viewed, there was negligence on the part of the defendant. Defendant asked that an issue as to contributory negligence be submitted to the jury, which was not done. We discover no contributory negligence of the plaintiff in the case. The address was sufficient, if defendant had exercised even ordinary care. C. 0. Byrd informed the defendant that Beckie Medlin, the addressee, was at Bosemary Mills, and *506 could be brought to the ’phone to receive the message, but defendant would not accept this proffer of his services. It cannot, therefore, be heard to say that the address was imperfect, when, had it not been for its negligence, if not perverseness, the telegram would have been delivered to the right person and by that name, nor can it plead contributory negligence successfully, when it appears that due diligence, if it had been used by it, would.have resulted in a true delivery with the address it had. It is proper to submit such an issue wheré there is any evidence to support it, and it is pleaded in the answer. It is not required of the plaintiff to show that she is free from contributing fault, as contended by the defendant. That is a matter of defense, and the burden of proof is upon defendant. Mullinax v. Telegraph Co., 156 N. C., 541; 72 S. E., 588. Where plaintiff proves the delivery for transmission of a prepaid message, or one accepted for. transmission without demanding the toll in advance, and a nondelivery of the same, it makes out a prima facie case, casting the burden on the defendant of showing any matters in excuse for its failure to deliver the message. Hoaglin v. Telegraph Co., supra, and easses cited therein. The defendant’s counsel' contended that the question of proximate cause was not properly submitted to the jury, not being necessarily involved in the two issues which the jury passed upon; but a slight reference to the charge will demonstrate that the court fully instructed the jury as to this phase of the case. It is unquestionably true that negligence alone is not actionable, unless it has proximately caused the injury, and so in this kind of case the plaintiff must prove, in order to recover, that the message was not delivered by reason of defendant’s negligence or breach of duty, and that its nondelivery or delayed delivery, as the case may be, was the proximate cause of the mental anguish alleged to have been suffered. Hocutt v. Telegraph Co., 147 N. C., 186; 60 S. E., 980; Hauser v. Telegraph Co., 150 N. C, 558; 64 S. E., 503; Hoaglin's case, supra. The court instructed the jury that the negligent failure to deliver the message must have prevented plaintiff from attending the funeral of her mother, and thereby have caused her to suffer mental anguish, and that this must be shown by plaintiff before she could recover. The language was plain enough for an intelligent jury to understand what was meant. As to the instructions requested by the defendant, those which were correct the court gave, at least substantially, in its charge, and those not given were properly refused. Whether the defendant made a reasonable effort to deliver the message was a question for the jury, and the court instructed them fully and correctly in regard to what would constitute due diligence. But the uncontroverted facts showed a clear case of negligence. Some of the prayers were not in accordance with the evidence. It is unnecessary to consider them in detail. The charge *507 was a fair exposition of tbe law applicable to the evidence, and, if anything, was liberal towards the defendant. The case was ably and ingeniously presented to us by the defendant’s counsel, and remarkably so, considering what a small margin there was uj>on which to base a successful defense. There was no error committed at the trial. No error.